SC: December 2016 Monthly Summaries of Published Opinions from Supreme Court of Ky

No decisions for month of November 2016.

Here are the December 2016 summaries of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.

  • Click here for the AOC Indexed Summaries by year and month.
  • Click here for the Kentucky Court Report’s index of each month’s summary by year and month.
  • Click here for the Kentucky Court Report’s index of each month’s minutes of all decisions by year and month.

Selected civil, torts, and insurance decisions that were published.

ATTORNEY FEES
Thomas K. Stone v. Pennie Dubarry (now Detorres), et al.
2015-SC-000040-DG December 15, 2016

Opinion of the Court by Justice Noble. All sitting. Minton, C.J.; Hughes and Cunningham, JJ., concur. Venters, J., concurs by separate opinion in which Wright, J., joins. Keller, J., concurs in result only by separate opinion. The Appellant, an attorney, represented the wife in a divorce dissolution proceeding. Unbeknownst to the husband, the Appellant’s employment contract with the wife granted the Appellant a lien “on all Client’s assets, now owned and hereafter acquired to secure payment” of attorney fees and costs. With the Appellant’s assistance in negotiations, the parties eventually entered into a property-settlement agreement. It provided that the husband would retain ownership of the marital residence and pay the wife $20,000 for her interest in the home. The agreement stipulated that those funds would come from refinancing the property. The Appellant never advised the husband during negotiations that he had a contractual lien against his client’s property as security for payment of his fee. The trial court entered a decree of dissolution incorporating the property-settlement agreement. Thereafter, the wife failed to pay the Appellant his fee, and he filed a notice of a lien in the amount of $7,142.82 against the marital residence. The trial court granted the husband’s motion to release the lien, and the Court of Appeals affirmed.

Having granted discretionary review, the Supreme Court affirmed. It held that the statute governing attorney-fee liens, KRS 376.460, does not apply to property assigned or divided in divorce proceedings. The Court further held that although an attorney may, in the alternative, obtain a contractual lien on marital property though a contract of employment, such liens will not be effective against property belonging to third parties unless they have timely notice of the lien. Because the Appellant gave the husband no notice of his contractual lien on the wife’s interest in the marital residence, the trial court was correct to release it once the husband became the property’s sole owner.

TRIAL  EVIDENCE.  SEPARATION OF WITNESSES RULE.

Kathy McAbee v. Darren C. Chapman, M.D.
2014-SC-000555-DG December 15, 2016

Opinion of the Court by Justice Hughes. All sitting; all concur. This medical malpractice action against a surgeon resulted in a jury verdict for the defendant. Upholding that result in an unanimous opinion, the Supreme Court agreed with the plaintiff/appellant that the trial court had misapplied the separation of witnesses rule (Kentucky Rule of Evidence 615) when it excepted from the rule two of the defendant’s expert witnesses without requiring an adequate showing of necessity for the expert witnesses’ presence in the courtroom during the testimony of other witnesses. The Supreme Court held, however, that having reviewed the trial testimony in its entirety the error was harmless.

GOVERNMENTAL IMMUNITY
Kentucky River Foothills Development Council, Inc. v. Cathy Phirman, Etc.., et al.
2015-SC-000244-DG December 15, 2016

Opinion of the Court by Justice Keller. All sitting. Minton, C.J.; Cunningham, Noble and Wright, JJ., concur. Venters, J., concurs in result only by separate opinion in which Hughes, J., joins. Kentucky River is a community action agency which receives and distributes federal block grants in order to alleviate poverty by providing employment opportunities and improving living conditions of the poor. One of the entities Kentucky River administers is Liberty Place Recovery Center for Women, an in-house peer-based substance abuse treatment facility. Melissa Steffen, who suffered from bipolar disorder, had been approved for parole but could not be released from prison until she found a suitable residence. In order to facilitate Melissa’s release from prison, her mother arranged for Melissa to be placed at Liberty Place. While Melissa was at Liberty Place, she ran out of her medication and her mental state began to deteriorate to the point that she left the facility. Following a number of alleged mis-steps by Liberty Place staff, Melissa committed suicide. Her estate filed suit against Liberty Place and Kentucky River. Kentucky River filed a motion for summary judgment arguing that it was entitled to governmental immunity. Relying on Comair, Inc. v. Lexington-Fayette County Airport Corp., 295 S.W.3d 91 (Ky. 2009), the circuit court denied Kentucky River’s motion. The Court of Appeals affirmed, finding that Kentucky River could not pass Comair’s “parent test” because it had not been created by an immune parent.

The Supreme Court affirmed. The majority noted that the Comair test contains two parts: whether the agency is the “child” of an immune “parent;” and whether the agency performs an integral state function. The majority noted that the circuit court and the Court of Appeals focused on Kentucky River’s parentage when the primary problem is Liberty Place’s function. The majority noted that Kentucky River argued it was performing a governmental function – alleviating poverty. However, the majority held that, if the alleviation of poverty is a governmental function, providing drug rehabilitation is not because providing drug rehabilitation alleviates substance abuse, not poverty. Therefore, Kentucky River did not meet the second prong of the Comair test. In his separate concurring opinion, Justice Venters stated that none of Kentucky River’s operations would be entitled to immunity because Kentucky River was performing a federal function not a state function.

December2016

COA: December 2016 Summaries of Published Decisions for Court of Appeals

The complete set of summaries of published decisions for this month are as follows at the bottom of this post.

This topical listing with individual summaries is prepared by the Kentucky Court of Appeals and posted at their web site with the Administrative Office of the Courts.  There is no regular publication date like those for the weekly minutes of decisions.

For a list of all archived monthly summaries, please click here for those at the AOC web site and click here for those posted here on this blog.

Please note some of these published decisions may have pending motions for discretionary review so you are cautioned to confirm finality of disposition by going to the AOC’s web site.

December2016

COA: November 2016 Summaries of Published Decisions for Court of Appeals

The complete set of summaries of published decisions for this month are as follows at the bottom of this post.

This topical listing with individual summaries is prepared by the Kentucky Court of Appeals and posted at their web site with the Administrative Office of the Courts.  There is no regular publication date like those for the weekly minutes of decisions.

For a list of all archived monthly summaries, please click here for those at the AOC web site and click here for those posted here on this blog.

Please note some of these published decisions may have pending motions for discretionary review so you are cautioned to confirm finality of disposition by going to the AOC’s web site.

November2016

SC: October 2016 Monthly Summaries of Published Opinions from Supreme Court of Ky

Here are the October 2016 summaries of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.  Click here for the AOC Indexed Summaries by year and month.  Click here for the Kentucky Court Reports index of each month’s summary by year and month.

PREMISES LIABILITY, SLIP AND FALL (MCINTOSH REVISITED)

Ralph M. Goodwin v. Al J. Schneider Company D/B/A Galt House & Galt House East 

2015-SC-000380-DG October 20, 2016 

Opinion of the Court by Justice Keller. All sitting. Minton, C.J.; Hughes, Noble, and Wright, JJ., concur. Venters, J., concurs in result only. Cunningham, J., dissents without opinion. Mr. Goodwin, who was staying with his wife at the Galt House, slipped and fell while getting into the shower. Goodwin filed suit alleging that the Galt House failed to warn of the dangerously slippery condition and/or to take reasonable care to eliminate the condition by, in pertinent part, providing a bathmat. The Galt House moved for summary judgment arguing that it was not an insurer of Goodwin’s safety and that he had failed to exercise ordinary care to prevent his injury from an open and obvious condition. The circuit court granted the Galt House’s motion and Goodwin appealed to the Court of Appeals, which affirmed.

The Supreme Court reversed the Court of Appeals. In doing so, the Court noted the evolution of the law regarding the “open and obvious” affirmative defense that began with Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010) and continued through Shelton v. Kentucky Easter Seals Society, Inc., 43 S.W.3d 901 (Ky. 2013) and Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015). After summarizing the preceding cases, the Court held that “a landowner has a duty to take reasonable steps to eliminate unreasonably dangerous conditions on its land. The question for the court on summary judgment is whether the landowner breached that duty, a duty that exists whether the conditions are open and obvious or hidden. Thus, in determining whether the landowner has breached that duty, the court does not look to whether the conditions were open and obvious but to whether the landowner took reasonable steps to eliminate the risks created by the conditions.” Applying the preceding to the Galt House, the Court noted that the circuit court, in granting summary judgment, and Court of Appeals, in affirming, focused on a lack of industry standards setting forth a duty to provide bathmats. The Court held that the issue was not whether the Galt House had a duty to provide bathmats but whether the failure to provide bathmats breached the Galt House’s duty of care.

October2016

COA: October 2016 Summaries of Published Decisions for Court of Appeals

The complete set of summaries of published decisions for this month are as follows at the bottom of this post.

This topical listing with individual summaries is prepared by the Kentucky Court of Appeals and posted at their web site with the Administrative Office of the Courts.  There is no regular publication date like those for the weekly minutes of decisions.

For a list of all archived monthly summaries, please click here for those at the AOC web site and click here for those posted here on this blog.

Please note some of these published decisions may have pending motions for discretionary review so you are cautioned to confirm finality of disposition by going to the AOC’s web site.

 

October2016

SC: September 2016 Monthly Summaries of Published Opinions from Supreme Court of Ky

Here are the September 2016 summary of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.  Click here for the AOC Indexed Summaries by year and month.  Click here for the Kentucky Court Reports index of each month’s summary by year and month.

Insurance Law:

Samantha G. Hollway v. Direct General Insurance Company of Mississippi, Inc. 
2014-SC-000758-DG September 22, 2016

Opinion of the Court by Chief Justice Minton. All sitting; all concur. Hollaway was involved in a low speed collision in a parking lot with Direct General’s insured. Direct General arguably assumed liability for causing the accident, but later recanted and disputed liability. Hollaway filed a multitude of claims, including a bad faith claim against Direct General for failing to fairly negotiate her claim. The trial court awarded Direct General summary judgment and the Court of Appeals affirmed.

A unanimous court affirmed the Court of Appeals. Though it is debatable whether the insurance company admitted causing the accident, it never conceded liability for the injuries she claims she sustained from the accident—Hollaway’s profession rendered itself to injuries of this type. But even if Direct General conceded liability, Hollaway failed to establish that the insurer acted with the level of intent necessary to prove a bad-faith claim. Notably, the Court removed the word “evil” from consideration in this aspect of the analysis.

Malicious Prosecution:

Gary Martin v. Stephen O’Daniel 
2014-SC-000373-DG 
Mike Sapp v. Stephen O’Daniel 
2014-SC-000389-DG
Bobby Motley v. Stephen O’Daniel 
2014-SC-000394-DG
September 22, 2016

Opinion of the Court by Justice Venters. All sitting. Minton, C.J.; Hughes, Noble, and Wright, JJ., concur. Cunningham, J., dissents by separate opinion in which Keller, J., joins. Police officers sued for malicious prosecution arising from their investigatory activities which led to the indictment and trial of the plaintiff for forgery, arising from his effort to obtain legal title to a stolen vehicle. Issues presented: 1) Whether police officers have governmental immunity from suit for malicious prosecution; 2) whether officers who turned over evidence to the prosecutor, who in turn made the prosecutorial decision to seek indictment, could be liable for malicious prosecution upon plaintiff’s acquittal. Held: 1) the doctrine of governmental immunity does not protect government employees for malicious conduct. Plaintiff asserting claim of malicious prosecution must prove malice, which if proven, negates the defense of governmental immunity; 2) “procuring” a criminal or civil judicial proceeding is synonymous with being the proximate and efficient cause of putting the law in motion against another person; 3) abrogating 4

Raine v. Drasin, 621 S.W.2d 895, 899 (Ky.1981), the Supreme Court restated the elements of malicious prosecution action as follows: 1) the defendant initiated, continued, or procured a criminal or civil judicial proceeding, or an administrative disciplinary proceeding against the plaintiff; 2) the defendant acted without probable cause; 3) the defendant acted with malice, which, in the criminal context, means seeking to achieve a purpose other than bringing an offender to justice; and in the civil context, means seeking to achieve a purpose other than the proper adjudication of the claim upon which the underlying proceeding was based; 4) the proceeding, except in ex parte civil actions, terminated in favor of the person against whom it was brought; and 5) the plaintiff suffered damages as a result of the proceeding.

Medical Malpractice Discovery.  Writ of Prohibition.

Baptist Health Richmond, Inc. v. Hon. William G. Clouse, Jr., Judge, Madison Circuit Court, Division 1, et al.
2015-SC-000657-MR September 22, 2016 

Opinion of the Court by Justice Keller. All sitting. Keller, Cunningham, Noble and Venters, JJ., concur. Hughes, J., concurs by separate opinion in which Minton, C.J., and Wright, J., join. The issue before the court involved the interaction of Kentucky’s discovery rules in medical malpractice cases and the federal Patient Safety and Quality Improvement Act (the Act). Note that the Court had previously addressed this interaction in Tibbs v. Bunnell, 448 S.W. 3d 796 (Ky. 2014), a plurality opinion.

Congress enacted the Act to encourage hospitals to engage in self-analysis. It therefore provides that certain information obtained during that self-analysis and contained in the hospital’s safety evaluation system is protected from discovery. However, the Act also states that its intent was not to interfere with existing state reporting requirements and discovery rules. Thus, information mandated by state requirements and otherwise discoverable would not be protected by the Act. The plaintiff in this case requested a number of documents which Baptist Health refused to produce claiming protection under the Act.

The Court, based on recently generated guidance from the Department of Health and Human Services, noted that the Commonwealth requires hospitals to collect certain information which has traditionally been discoverable. A hospital cannot, 6

based on the Act, claim that such otherwise discoverable information is protected by the Act. Furthermore, a hospital cannot take otherwise discoverable information, place it in a protected safety evaluation system, and claim that the information is not discoverable. As long as a hospital is complying with its state mandated reporting requirements, the trial court has no reason to examine the information in the protected safety evaluation system. However, if a hospital is not complying with state mandates, the court can conduct an in camera review of the information in the protected safety evaluation system to determine if any state mandated information is contained therein.

In her concurring opinion, Justice Hughes further delineates the procedure a court should undertake in determining whether and to what extent contested information is discoverable.

 

September2016

COA: September 2016 Summaries of Published Decisions for Court of Appeals

The complete set of summaries of published decisions for this month are as follows at the bottom of this post.

This topical listing with individual summaries is prepared by the Kentucky Court of Appeals and posted at their web site with the Administrative Office of the Courts.  There is no regular publication date like those for the weekly minutes of decisions.

For a list of all archived monthly summaries, please click here for those at the AOC web site and click here for those posted here on this blog.

Please note some of these published decisions may have pending motions for discretionary review so you are cautioned to confirm finality of disposition by going to the AOC’s web site.

September2016

SC: August 2016 Monthly Summaries of Published Opinions and Attorney Disciplinary Actions from Supreme Court of Ky

Here are the August 2016 summary of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.  Click here for the AOC Indexed Summaries by year and month.  Click here for the Kentucky Court Reports index of each month’s summary by year and month.

Only one insurance decision – underinsured motorist benefits.

Countryway Insurance Company v. United Financial Casualty Insurance Company, et al.

2014-SC-000265-DG August 25, 2016

Opinion of the Court by Justice Hughes. All sitting; all concur. Auto insurers both providing uninsured motorist coverage to a person injured while a passenger in vehicle owned by another raised a priority issue in the trial court. That court resolved the issue by ruling that the companies’ competing “other insurance” clauses cancelled each other out and left the companies jointly liable on a pro-rata basis. Reversing, the Court of Appeals ruled that primary liability rested with the passenger’s personal carrier. Reversing the Court of Appeals, the Supreme Court held, in accord with Kentucky Farm Bureau Mut. Ins. Co. v. Shelter Mut. Ins. Co., 326 S.W.3d 803 (Ky. 2010), that the Motor Vehicle Reparations Act implicitly fixes primary uninsured motorist coverage on the vehicle owner’s insurer.

Here are all the summaries with link to full text of the published cases for this month:

August2016

COA: August 2016 Summaries of Published Decisions for Court of Appeals

The complete set of summaries of published decisions for this month are as follows at the bottom of this post.

This topical listing with individual summaries is prepared by the Kentucky Court of Appeals and posted at their web site with the Administrative Office of the Courts.  There is no regular publication date like those for the weekly minutes of decisions.

For a list of all archived monthly summaries, please click here for those at the AOC web site and click here for those posted here on this blog.

Please note some of these published decisions may have pending motions for discretionary review so you are cautioned to confirm finality of disposition by going to the AOC’s web site.

august2016